反思通姦除罪化及釋字第791號解釋相關之隱私權論述──從James. Q. Whitman〈兩種西方隱私文化〉一文談起

On the Privacy Discourse about Decriminalization of Adultery and the Interpretation No.791: Through the Lens of James. Whitman’s Two Western Cultures of Privacy

Based on the right to sexual autonomy, Interpretation No. 791, which invalided the criminalization of adultery unconstitutional and overturned Interpretation No. 554, undoubtfully marks a significant milestone in the decriminalization of adultery. However, it is notable that the concept of privacy, which was also raised by the petitioner, receives considerably less emphasis in this interpretation. This article aims to figure out the reasons behind this imbalance.
To clarify the complex context of the privacy for further discussion, this article introduces James Q. Whitman’s comparative study on privacy. Whitman’s discourse begins with the legal history of privacy and highlights the differences between Europe and the United States in their conceptualization of privacy, rooted in the values of dignity and liberty, respectively. These differences lead to variations in the protected interests and primary adversaries. By utilizing Whitman’s framework, this article re-evaluates the discourse surrounding the right to privacy in the debates on decriminalizing adultery. The findings reveal that proponents arguing the unconstitutionality of criminalizing adultery based on the right to privacy often interpret“privacy”in an American-style context of individual autonomy. However, due to the lack of constitutional grounding and potential overlap with the concept of sexual freedom (sexual autonomy), this American-style privacy fails to gain favor with the Constitutional Court, resulting in an imbalance in the right to privacy within Interpretation No. 791. Through clarifying the issue above, this article also points out the obstacles that the American-style concept of privacy may encounter in Taiwan.